Vong and Ngo

[2014] FCCA 228

FEDERAL CIRCUIT COURT OF AUSTRALIA

VONG & NGO [2014] FCCA 228

Catchwords:
FAMILY LAW – Parenting dispute – father suffering from paranoia and delusions – serious violence perpetrated on mother at time of separation – father challenging report and opinions of psychiatrist and family report writer – father undoubtedly loving children – risk of violence by father established – father ordered to undertake psychiatric treatment even though unlikely to do so – orders made as sought by Independent Children’s Lawyer.

Legislation: 
Family Law Act 1975 (Cth), ss.60CC, 60CC(2)(a), 60CC(3)(a), 60CC(3)(b), 60CC(3)(c), 60CC(3)(ca), 600CC(3)(d), 60CC(3)(e), 60CC(3)(f), 60CC(3)(g), 60CC(3)(h), 60CC(3)(i), 60CC(3)(j), 60CC(3)(k), 60CC(3)(l), 60CC(3)(m), 60CC(2A), 61DA(1), 61DA(2), 61DA(4)

Goode v Goode [2006] FamCA 1346

Applicant: MR VONG

Respondent: MS NGO

File Number: MLC 9106 of 2011

Judgment of: Judge Burchardt

Hearing dates: 25 November & 19 December 2013

Date of Last Submission: 19 December 2013

Delivered at: Melbourne

Delivered on: 21 March 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Mr G. Combes

Solicitors for the Independent Children’s Lawyer: Agricola Wunderlich & Associates

ORDERS

1. The mother have sole parental responsibility for the children [X] [in] 2008 and [Y] born [in] 2010 except that:

   (a)The mother shall inform the father of all major decisions in respect of the health and education of the children within 7 days of such decision being made (except that the mother is not required to provide the father with the name of the school or kindergarten where the children attend or the health professional who may treat the children)

   (b)The mother shall provide the father a letter on four occasions each year informing the father about the progress of the children with such letters to be forwarded in January, April, July and October of each year. 

2. The children live with the mother. 

3. The father be at liberty to send the children cards, presents and letters provided they are age appropriate and relate to what the father is doing in his life, but the responsibility for the delivery of those communications to the children shall be that of the mother who shall satisfy herself that such communications fulfil the criteria in this order. 

4. For the purposes of the preceding paragraph, the mother is required within 30 days of the day of these orders to set up a postal box address at a post office of her choice but at the expense of the father. 

5. For the purpose of the preceding two paragraphs, upon setting up the postal box address, the mother shall send the details to the father in a letter requesting that he provide a refund of the costs of that setting up and initial rental of the post office box and if the mother does not receive a payment from the father at the post office no later than one month after she has sent to the father that address and cost details, she may cancel the post office box. 

6. That annually, the mother use the same operation as referred to above for the purposes of any renewal, and if the father fails to make the payment within the month, she may cancel the post office box. 

7. The father is restrained from attending any post office referred to in these orders and from approaching the mother whilst she is collecting any communications from him nor is it expected that Australia Post would provide details of the mother’s address for the purposes of the details concerning the postal box referred to in these orders. 

8. The father forthwith attend a G.P. and obtain a referral to a psychiatrist, and attend no less than 15 sessions with that psychiatrist for treatment (and attend more than 15 sessions with that psychiatrist if directed to do so by that psychiatrist). 

9. The father follow all directions from the psychiatrist referred to in the preceding paragraph including any direction from the psychiatrist concerning the father taking prescribed medication. 

THE COURT NOTES THAT:

1. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders. 

IT IS NOTED that publication of this judgment under the pseudonym Vong & Ngo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 9106 of 2011

MR VONG

Applicant

And

MS NGO

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a dispute about the best interests of two children, [X], born [in] 2008, and [Y], born [in] 2010.  All disputes about children are necessarily sad, but this one is particularly so. 

2. The applicant father seeks that the two children live with him or at the very least spend more time with him than the Court’s current orders provide for.  The mother’s position is that she should have sole parental responsibility and the children live with her and the father’s time be reserved.  The Independent Children’s Lawyer’s position is essentially the same as that of the mother. 

3. For the reasons that follow, and notwithstanding that the father plainly adores his children, I am going to make the orders proposed by the Independent Children’s Lawyer. 

4. The case has taken quite some time to get to trial.  It was due to be heard in 2012 but was adjourned.  The matter was not then in my docket but I suspect this adjournment was because of the late withdrawal of legal representation.  The transcript of the proceeding before her Honour, Turner FM, on 3 December 2012 strongly suggests that this is the case.    

5. In these circumstances, it is appropriate to paraphrase the materials filed from time to time. 

The materials filed in the proceeding

1. The father filed his Initiating Application on 10 October 2011.  He sought that the children live with him and spend such time with the mother and under such conditions as the Court deemed appropriate.    

2. The father’s Affidavit filed on the same date reveals that he was born [in] 1959 and is therefore, of course, now 54 years old.  He migrated to Australia in 1978 as a boat person and has lived at his current address in [omitted] in Victoria for all but the first six months of his time in Australia. 

3. He deposed to meeting the respondent mother in [country omitted] in early 2007 while on a holiday.  They married in [country omitted] later that year but owing to migration regulations, the mother did not arrive in Australia until 8 August 2008.  

4. The affidavit deposed that [X] was born [in] 2008 and [Y] on [date omitted] 2010.  That is plainly a minor error because it is apparent that [Y] was born on [date omitted] 2010. 

5. The father worked until [X] was born but then ceased.  The father deposed that the wife then went to work [omitted] where she remained from about February to December 2009, when she ceased work after falling pregnant with [Y].  The affidavit asserts that the wife sent all the money she made to her family in [country omitted]. 

6. The affidavit deposes that thereafter the mother started attending English classes and she thereafter became less interested in the applicant and her children and became disdainful of his family. 

7. The affidavit then goes on to make a number of criticisms of the mother.  It is deposed that she failed to attend hospital on one occasion when [X] was unwell and that she also on occasion became drunk.  The affidavit deposes that the maternal grandmother came to Australia in July 2011 and deposes to poor interfamily relations thereafter.  The affidavit then deposes to an incident where the police were called to the matrimonial home.  In the ultimate, the father moved out. 

8. The affidavit asserts that the mother only used the father to migrate to Australia and had no intention to being married to him or being a family with him.  The affidavit deposes to the father having spent over $30,000 bringing his wife and family to Australia and states in terms (paragraph 19):

   “… I believe that the wife’s mother has influenced my wife to leave me and take the children with her because they will receive Centrelink payments for the children.”

9. The affidavit deposes that following the Magistrates Court hearing on

   
   

   7 September 2011, the next day the wife, her mother and the children left the house with the assistance of the police. 

10. The father deposed that he had always been the primary carer for the children, had done about 70 per cent of the housework and caring for the children, and all the grocery shopping and cooking.  The affidavit asserts that the mother has very poor parenting skills and has no patience with the children. 

11. Annexed to the affidavit, as annexure TV2, was a letter from [omitted] Child care, which appears to confirm that the father was the person who regularly collected the children from the child care centre.  What is noteworthy about annexure TV2 is that [X] (at this stage just approaching three years old) was in child care full-time and [Y], at that stage just approaching her first birthday, was in child care for four days a week.  On any view, neither parent was a full-time carer to the children. 

The mother’s response

1. The mother’s Response was filed on 23 November 2011 and sought that the children live with her and the father have supervised time.  Her Affidavit filed contemporaneously shows that she was born [in] 1984 and is therefore 29.  She is clearly much younger than the father. 

2. The affidavit confirms that the parties met in [omitted] in 2007 and married in [omitted], although the affidavit does not give the date of the marriage.  It confirms the mother’s arrival in Australia on 9 August 2008. 

3. It also confirms the employment at [omtited] between February and December 2009. 

4. The affidavit deposes that separation took place on 7 September 2011, this being the date the mother applied for an Intervention Order. 

5. The affidavit annexes as TH-1 a copy of the Intervention Order for one year issued by the [omitted] Magistrates Court on 19 September 2011. 

6. Although the affidavit asserts the father had on numerous occasions assaulted her, the only two instances of violence referred to in the affidavit by the mother are one occasion in 2010 in [country omitted] and another occasion immediately before separation.  The assaults alleged immediately before separation are significant. 

7. The affidavit went on to depose that the applicant and children were living in a home provided by the Women’s Refuge and that the mother was fully able to look after them.  The affidavit deposes (paragraph 35) that the mother had placed the children in day care “in order to socialise and interact with other children.  It will improve the children’s English skills as my English is poor and speak [language omitted] at home to the children.” 

8. I note that the affidavit asserted that [Y] was still breastfeeding and was breastfed four to five times per day.  Quite how this was possible when she was in day care four days a week is not indicated.  

9. The affidavit went on to depose that there was no arrangement in place for the children to spend time with the father and this was because the mother did not want to see him or communicate with him.  She said she feared for her life.  She proposed supervised time only. 

10. The mother went on to respond to the father’s affidavit in terms which are otherwise consistent with her own material. 

11. The matter went to Court in November 2011 and orders were made by consent for the children to live with the mother and spend time with the father from 10:00 a.m. to 1:00 p.m. each Wednesday and Sunday with supervising parties to be in substantial attendance and changeover to occur at McDonald’s Restaurant [address omitted]. 

12. On 2 March 2012, the mother filed a further affidavit which essentially purported to explain that changeover was not going well because of misconduct by the father, including aggressive behaviour at changeover.  The mother deposed that the father was following her after changeover to try and find out where she lived.  She sought that changeover occur in a Contact Centre. 

13. The matter came before the Court on 6 March 2012 and the changeover arrangements were altered so that the changeover was to be at [omitted] Police Station.  A Family Report was ordered and the matter was set down for trial in December 2012. 

The mother’s Amended Response

1. On 29 November 2012, the mother filed an Amended Response seeking equal shared parental responsibility but that the time with the father be extended from 10:00 a.m. to 5:30 p.m. and that the father undertake counselling and that the changeover be at [B] Contact Centre. 

2. That Amended Response largely followed the recommendations in the Family Report of Ms E dated 15 October 2012, although it in fact provided for slightly more time than that which Ms E had recommended.  I will return to the Family Report in due course. 

3. The mother’s Supporting Affidavit filed 29 November 2012 was in fact an update.  Relevantly, the affidavit attached as annexure BNTN-1, a letter from [B] Contact Centre, dated 9 August 2012, which confirmed that the father had refused to engage with [B] Contact Centre.  Changeover was still continuing outside the [omitted] Police Station. 

4. The affidavit complained of the father’s misconduct at changeover, including abuse of the mother, spitting on her and hitting her three times in the face, albeit not hard.  It repeated assertions that the father was endeavouring to find out where she lived notwithstanding the Intervention Order and confirmed that the mother had applied in November 2012 to extend the Intervention Order for a further two years. 

5. The affidavit confirmed that the children were currently living with the mother and spending time with the father every Wednesday and Sunday from 11:00 a.m. until 4:00 p.m. 

6. As earlier indicated, the December 2012 hearing had to be aborted because of the father’s lack of representation. 

The Recovery Order

1. The next thing that occurred was that the mother filed an Application in a Case seeking a Recovery Order on 27 December 2012.  The Affidavit in Support relevantly showed that the father had over-held the children following the cessation of time on 23 or December 2012. 

2. The father’s responding Affidavit filed on 24 January 2013 took issue with the allegations of stalking and provided an explanation for the events. 

3. Relevantly, the affidavit deposes (paragraph 10) that on 23 December 2012 the mother agreed that the children could stay with the father till the New Year. 

4. The affidavit also deposes at paragraph 11 that on 26 December 2012 the father sent a message to the mother saying words to the effect “[X] and [Y] just returned from Geelong.  Are you going to pick up the kids or not?”. 

5. I would interpolate and say that it is immediately apparent that if it had been agreed the children were to stay with the father until the New Year there was no earthly reason why a message of that character would have been sent. 

6. The affidavit then went on to explain how it was that on 10 January 2013 the Recovery Order had been effected. 

The affidavit of Dr W

1. On 8 May 2013, Dr W, Consultant Psychiatrist, affirmed an affidavit proving his psychiatric report previously ordered by the Court.  It is not necessary to set out the entirety of that report.  It speaks for itself.  Relevant matters in the report are at page 12 of 15.  At page 12 Dr W said:

   “… However, he appeared to be quite paranoid overall.  In addition to the abovementioned comments he eventually acknowledged the belief that there was contact between many of the abovementioned  agencies, “behind my back … the Women’s Association is plotting against me … I’m sure they talk to the police, Court, and Catholic Care… not just on the day of the Court … and I think they are capable of ringing the Judge, they can break the law … they’ve told security staff to keep an eye on me in Court … they get in contact with the Judge I think.”

   Eventually, Mr Vong acknowledged that he suspected that “several Judges have been given money.”

2. On the same page the report continues:

   “Mr Vong’s insight seemed to be significantly impaired.  In addition to the abovementioned paranoid beliefs, he continually reverted to explaining many situations via his belief that, “My mother-in-law was greedy, demanding money, avoiding repaying money”.  He gave this as a reason as to why a wife, who was reportedly happy, would suddenly leave in the manner in which she did.

   CONCLUSIONS

   Mr Vong is a 54-year old man who appears to be suffering from a psychiatric disorder.  There is a significant likelihood that

   
   

   Mr Vong is suffering from a Delusional Disorder.  Alternatively, he may be a man with significant paranoid personality traits whose paranoid tendencies have become exacerbated at a time of stressful events surrounding his marital breakdown. 

   Either way, Mr Vong does not appear to be responding to his current psychological counselling, and there is a risk of violent behaviour on his part.

   It is noted that, in addition to the extreme paranoid ideation, which appears to have been woven into a complex delusional over-valued narrative in his mind about his wife’s sudden departure from the marriage into a women’s refuge, and with subsequent serious allegations against Mr Vong, there is a significant possibility that he was experiencing delusions of infidelity during his marriage.

   At interview, Mr Vong demonstrated no insight into his thinking and behaviours, and sought to rationalise many of the events as having been motivated by his parents-in-law’s greed.

   It is not absolutely impossible that Mr Vong has been the subject of a clever and malicious plot by his wife and his in-laws, and that his personality and cultural background have leant themselves to extreme mistrust of various authorities.  It will be up to the Court to hear the totality of the evidence, and decide the issues involved.

   Nevertheless, this examiner holds significant concerns that Mr Vong is suffering from a serious psychiatric disorder as described above, and is of the opinion that Mr Vong probably requires urgent specialised psychiatric treatment, specifically with a psychiatrist rather than a psychologist.

   He requires further thorough assessment, and probably antipsychotic medication.

   Paranoid conditions are difficult to treat, and the prognosis must be guarded.  It is not impossible that after a lengthy period of treatment and monitoring, Mr Vong’s condition might improve and he might develop further insight.  A report from a treating psychiatrist after at least 12 months of intensive psychiatric treatment might provide a more optimistic outlook with regard to Mr Vong’s future mental state and his risk to his ex-wife and children.”

The mother’s further Amended Response

1. On 20 November 2013, the mother filed a further Amended Response.  She sought sole parental responsibility, that the children live with her and the father’s time be reserved. 

2. The Affidavit filed in support was by way of update.  It deposed to the fact that the visits at the Contact Centre had only lasted for about four times.  The visits appeared to go well and the children were not upset following the visits with the father.  The contact ceased because the Contact Centre cancelled it and the children had not seen the father since then. 

3. The affidavit deposed to unremarkable good health on the part of the children and the fact that [X] is now currently in kindergarten. 

4. The affidavit deposed that the Intervention Order extension application was listed for mention in December 2013. 

The father’s responding Affidavit

1. The father filed in Court on 25 November 2013 a further Affidavit.  He deposed to his ongoing desire to be involved in the children’s lives and to assist in their development.  He deposed that he was willing to engage with a psychiatrist; “though I do not feel I have any appreciable psychiatric issues, at least at this time” (paragraph 5). 

1. He deposed that he could not afford to undertake independent psychiatric assistance and said at paragraphs 6 and 7:

   “6.    For the sake of my children I am willing to forget about the selfish and unscrupulous actions of the mother and the upset and division of the family that she has caused, though I would like for the mother and family members of hers to return money I gave to them.  My focus is not on the past or anything bar the children and what is best for them.

   7.    The mother is not motivated in this matter by the interests of the children.  Instead she hopes to achieve an outcome which cuts me out of their lives as much as possible only so as to distance herself from me to the greatest extent.  I believe her motives in marrying me were never any way pure. …”

2. The affidavit went on to depose to poor parenting skills on the part of the mother, and the father’s belief that the children would benefit most through his being their principal carer, and annexed six hearsay letters in support of his parenting skills. 

3. The affidavit deposed that [B] Contact Centre ceased contact because he was speaking to the children in [language omitted] in circumstances where a [omitted] interpreter was not available.  He deposed that the requirement to converse in English was a genuine difficulty for him and that the children had been happy to see him at [B] Contact Centre and were sad when their visits came to an end.  

The Family Report of Ms E

1. This report dated 15 October 2012 was well and truly out of date by the time the hearing came round.  It was not formally tendered but was adopted by Ms E when she gave evidence and is on the Court file. 

2. The report set out a brief overview of the history of the matters which it is not necessary to repeat.  The aspects of the report which would strike me as significant are at page 6 where in the applicant’s interview with Ms E the father said:

   “He said he did not know why he had to speak to me.  He said

   “My lawyers are more or less a puppet on the side of my wife.  They have not recorded well all my complaints.”

3. At page 7 of the report he said:

   “… the laws in Australia always protect the woman and they want the baby bonus and the mother and mother-in-law were gossiping …the women’s group are very powerful.”

4. At page 9 of the report I note the mother’s response to the suggestion that she only married Mr Vong to migrate to Australia was, “If I wanted to do that I would never have had children with him”. 

5. I note that when the father met the children they appeared to enjoy being with him and he was affectionate and played and talked with them appropriately. 

6. At page 10, paragraph 42, Ms E concluded that the father “blames Ms. Ngo and the institutions in Australia which he perceives as favouring women”.

7. She went on to say at paragraphs 44-45:

   “44.  Mr Vong will need continued professional support to assist him to come to terms with his situation.  He appears depressed and is sufficiently vulnerable to suggest that he requires monitoring in case of deterioration.  Re-assessment at some later stage would be informative.

   45.  Because both parties were interviewed through an interpreter, understanding of cultural and linguistic nuance may have had some affect on this assessment.”

8. The report went on to recommend that the children live with the mother, spend time with their father, that the father attend counselling and that changeover take place at a Contact Centre. 

The matters asserted in Court – the father’s opening

1. The father made an opening address (both parties were self-represented and had the assistance of interpreters).  He said he would like the children to live with him or would like more time with the children and on weekends as well.  He said he would take the children to church.  He said the children needed input from their father and he could help enrich their lives.  He said that the service that was supposed to supervise changeover treated him like a prison and forbade him to speak [language omitted] to the children.  He said he wanted the children to be bilingual. 

2. He said he was a good, caring, responsible father and that he had evidence to prove he had looked after the children up to 95 per cent of the time.  He said that the mother had agreed that he should take the children last year but then there was Court intervention even though he had done nothing wrong.  He said the mother’s parents were very greedy and stole $30,000 from him. 

3. He said that he married his ex-wife quickly which was his mistake and that he had not understood her family.  He said that the younger sister of his father-in-law was a Catholic nun and the image of a nun had been used to fool him.  He said that when the mother told him her parents might come to Australia on a tourist visa he tried to help and when they saw his love of the children they used that to demand more money from him.  He said the maternal grandparents were abusive to his daughter and this led to nightmares and that this broke his heart. 

The father’s evidence under oath

1. In evidence-in-chief the father said that the children, when they are sleeping with him, look like angels and that everything seems so cruel.  He said the other family is so greedy and they wanted the baby’s money and milk money.  He said he missed the children and that the ex-wife was not a good mother.  He gave an instance where the mother had failed properly to look after an eight month old child.  (I presume this was a reference to the occasion when [X] was taken to hospital).  He went on to complain about the conduct of the [B] Contact Centre and of the police and he finished by saying that the matter was brought by the women’s group who wanted him to separate.  

2. I should note that this paraphrase suffers from the difficulty that

   
   

   Mr Vong’s style of speech was hard to follow through the interpreter. 

The father under cross-examination by counsel for the Independent Children’s Lawyer

1. The father confirmed that he had attended one session with the psychologist, which cost him $160.  He said that amount should be spent on the children.  When asked if he had made any attempts to see a psychiatrist, he said that whoever labelled him should pay for the fee.  He should spend his money on his own children.  He said he could bring 200 witnesses to say he was a good member of society.  He said the problem now faced was created by other parties and he had done nothing wrong.  He said he did not agree with Dr W’s assessment.  

2. When questioned as to whether he still believed, as he had told Dr W, that a women’s association was plotting against him, his answers were unresponsive.  He said they imparted false information and that no love can prevail over the love of children.  

3. The father did confirm his affidavit assertion that the mother was conniving, selfish and unscrupulous and said that was 100 per cent true.  He also confirmed his allegations against the mother as a mother and said that she was aggressive to the children. 

4. This led counsel to ask if all these matters were true why any time should be spent by the mother with the children.  The father did not answer this question.  He said he did not understand why the law in Australia is always in favour of a woman.  He missed his children (and he became tearful and labile at this point). 

5. He said the mother was under the thumb of her own parents and reiterated complaints about money and the children’s care.  He said the mother was not capable of love.  

6. He confirmed that for the sake of the children he would not denigrate the mother while they were in his care. 

7. When challenged about as to whether his behaviour at changeovers was aggressive, his answers were unresponsive.  He denied abusing the mother at changeover at [B] Contact Centre but said on one occasion that he told her to give the children more time to sleep (a matter he had referred to in his earlier evidence).  He accused the mother of inventing the assertion that he spat at her at changeover. 

8. When questioned as to why he sent the message on 26 December 2012 when he over-held the children, he was not able to give any meaningful reply.  

9. When questioned as to why [B] Contact Centre had refused contact the father said he wanted the children to have full development and that he was treated like a prisoner.  He said one reason was that he handed food over to the children.  

The father under cross-examination by the mother

1. Under cross-examination by the mother, the father repeated that there had been agreement that he keep the children for longer on the occasion when the Recovery Order was made. 

2. As might be expected, given that both parties were self-represented, cross-examination by the mother did not, in my view, elicit anything of any meaningful assistance to the Court in its deliberations, save that it is clear the parties have very different views of their history together.  In re-examination the father said he would like the children to be able to live with him so they could develop properly.  

The evidence of the mother

1. The mother commenced by indicating that she would like to say that the father’s affidavits were not true.  She attested to the truth of her own affidavits as filed. 

2. Under cross-examination by counsel for the Independent Children’s Lawyer the mother asserted that the father is good to the children but that when [X] returns from being with his father he says he does not want to see him.  She said that since time ceased at the Contact Centre the children have not talked about the father.  She had asked them if they were missing him, as she would contact him if they were, but they said they did not want to see him.  She said that the father was good with the children but did not treat her well.  She said the only reason the children did not see the father is because they did not want to.  She said that if the doctor said the father was okay, that he was normal mentally, then it would be all right for the children to see the father, otherwise not. 

The mother under cross-examination by the father

1. Unsurprisingly but unfortunately, Mr Vong struggled to formulate questions.  He simply put propositions.  He put it to the mother that the children only said they did not wish to see him because of the mother’s behaviour and they were scared to love him.  The mother replied that she never said anything bad to the children and did not hit the children and that the father was lying. 

2. The cross-examination, as might be expected, was essentially in the nature more of a domestic dispute.  Some time was spent on the issue when [X]’s hat had flown off while crossing a road.  The mother denied the father’s version of the events.  I note that the father had the hat with him in Court and appeared to want the Court, as it were, to examine it. 

3. There was further unhelpful cross-examination about some jewellery. 

4. The father sought to cross-examine on the financial disputation between the parties but I ruled this irrelevant.  

5. In what was effectively self re-examination the mother said that the questions put to her by the father were not true, that she wanted the children to be with her and that they could choose when they grew up.  

6. She also referred to a photograph put to her as part of an album (exhibit A1) that the father had confronted her with, showing one of the children with a red nose and was not able to explain this condition. 

The evidence of Dr W

1. The proceeding had to be adjourned to enable Dr W and Ms E to be cross-examined by Mr Vong, who had indicated a desire to do so.  

2. The father put it to Dr W that he had refused to look at the photo album, exhibit A1, and had accused him of having a mental condition at the interview. 

3. Dr W did not accept that this had occurred.  He said that he gave no opinion when he saw Mr Vong but expressed this in his written report.  He said he remembered the photo album, which had been opened and he had been shown photographs.  He said that it was clear that the father wanted to show him the album to show his close relationship with the children.  He had said he did not require further viewing.  He said that he was sure he had thanked the father for the offer but explained that it was not his role to make a detailed assessment of his relationship with his children.  He said that he recalled that the father became quite agitated about this matter.  

4. The father put it that when he was seen it was like an investigator or a police officer. 

5. Dr W said that this sort of interview is unfortunately a little like interrogation because many questions have to be put.  He said, however, that in the written information provided and interpreted the nature of the investigation had been thoroughly explained.  He said that he repeated this explanation more than once during the interview because the father had become agitated more than once. 

6. The father put it that the law seems in favour of women and it is always to protect women.  Dr W responded that he believed he had explained his reasons in his report. 

7. The father put it that Dr W had emphasised the matter of the women’s’ association in his report and that Dr W kept telling him that they gave value to women’s’ associations and to the Court.  Dr W responded that he written in the report what transpired from his perspective. 

8. The father put it that, in his opinion, Dr W’s opinion about him was inadequate. 

9. Dr W responded, in my opinion, courteously and responsively. 

10. In response to a question from the counsel for the Independent Children's Lawyer as to what Dr W meant by a lengthy period of treatment for the applicant in his report, he said a lengthy period is usually years and in this case might be many years. 

The evidence of Ms E

1. Ms E was called and adopted her report of 15 October 2012. 

2. It is difficult to paraphrase the questions and answers given to and arising from the questions put by the father.  The questions tended to be very long, rolled up assertions.  The father referred to dishonesty and greed on the part of the mother, the abstraction by the mother’s family of substantial amounts of money from the father and an assertion that there was no justice in the report and that sex movies were shown in front of the children. 

3. In response to the latter allegation, Ms E said that this had not been raised in the interview.  The father said he had mentioned it and that the mother was a cruel mother, who had slapped the children when they ran to the father. 

4. In response to the question as to why matters raised by the father were not in the report, Ms E replied that she took normal notes of cogent matters.  She confirmed that she had no allegiances to either party, only to the children and to the Court.  She confirmed that she had not prohibited the father from giving answers to her.  

5. In cross-examination by the Independent Children’s Lawyer, Ms E confirmed that she had read Dr W’s report.  She said the father was now worse.  She had thought that the father’s condition arose from the trauma of separation but said it had now consolidated into paranoid thinking.  She confirmed that in light of Dr W’s view that treatment for the father would take many years, supervised time would be pointless.  She said that if the father would not undertake treatment at the very least, he could never have unsupervised time, and that she supported the orders contended for by the Independent Children's Lawyer (which were put to her in Court). 

6. The father sought to put further questions and in the circumstances I permitted him to do so.  Once again, however, most of these were really more in the form of statements.  In response to a question to the effect “if you were [Y] or [X], how would you feel if you had no father figure”, Ms E replied that “[Y] and [X] would be sad.”  She said that the most important part of the children’s happiness would arise from the relationship between the father and the mother. 

7. In response to a question to the effect “what reason did all of you have so that you all came to the same view”, Ms E responded that her views were influenced by Dr W; Dr W is an eminent practitioner who provides good psychiatric reports, and that some of his observations were consistent with her own.  She confirmed, however, that she exercised her own judgment when she wrote her report. 

8. The final question according to my notes put was to the effect, “if you and Dr W agree I have a mental condition, can you send me to a psychiatrist.  Would you pay compensation if it was found?” (and I inferred, although I do not now recall, that this referred to the possibility that either Mr Vong proved not to be unwell, or the process in some way caused him damage). 

The submissions of the Independent Children’s Lawyer

1. Counsel submitted that these two young children were in the care of the mother, and that there was no evidence that the mother was not doing a very good job.  Counsel traversed the primary and additional considerations in the Family Law Act 1975 (Cth) (“the Act”). Counsel noted the mother’s allegations of domestic violence in the presence of the children and pointed to Dr W’s report which referred to the risk of violence on the father’s part.

2. Counsel said that the primary matter arising under s.60CC(2)(a) of the Act is the question of risk.

3. I do not propose to traverse in detail the submissions made about the matters in s.60CC(3) in detail because I will traverse those subsections myself in due course. I note the submission that the father had a good relationship with the children, which I accept. I further note the submission that the father totally dominates the mother in respect of decisions. He says the mother is worthless as a mother. I note that the father has spent time with the children, but the Contact Centre terminated the time.

4. Counsel observed that it was quite some time since the children had seen their father and that it was therefore unlikely they would suffer if they did not see him again.  Counsel not surprisingly referred to the father’s psychiatric problems and the father’s total lack of insight, and referred to the father’s application for residence as an instance of that. 

5. Counsel pointed out that given the father’s views of the mother and his refusal to obtain psychiatric assistance, there is, first, no capacity to co-parent and, second, that supervised time would be useless. 

6. Counsel pointed out that Ms E supported the orders sought by the Independent Children’s Lawyers. 

Submissions of the mother

1. The mother submitted the children were very young, and it was better they stay with her.  She referred to the assault upon her when she said she had been almost strangled just before separation.  She said that the father should seek treatment for his condition so that the children can see him.  She said she would look after the children and was not a bad mother. 

Submissions of the father

1. Mr Vong said he did not know whether he should cry or not.  He said he had told the mother to be honest and moral, and that the maternal grandmother had robbed him of $50,000.  He said that the maternal grandparents had taken money back to [country omitted] to build a house there with his money.  He said he would like the children to live with him, that he would educate them well, take them to church, and assist them to study.  He said he did not want the children to be badly influenced by the other side.  He said he had the ability and capacity to care for his children and had many relatives here.  He said if the children lived with him their lives would be brighter.  He said if the Court did not have faith in him, he would provide a petition with 100 to 200 signatures from people who knew him well.  He said he did not want to be in Court, he wanted the children to live with him.  He said since the children’s birth the photographs in exhibit A1 showed that he was 90 per cent responsible for raising the children.  He said he hoped everybody put themselves in the children’s shoes to feel for themselves. 

The Statutory Pathway

1. The approach to be adopted in parenting disputes is in my view, despite some statutory subsequent amendment, most helpfully indicated in the decision of the Full Court of the Family Court in Goode v Goode [2006] FamCA 1346 at [65]:

   “[65] In summary, the amendments to Pt VII have the following effect:

   1.  Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of 36 Fam LR 422 at 440 the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.

   2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility.  That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).

   3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).

   4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).

   5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).

   6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability” (s 65DAA(5)).

   7. The concept of “substantial and significant” time is defined in s 65DAA to mean:

   (a) the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii) days that do not fall on weekends and holidays; and

   (b) the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii) occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.

   9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.

   10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.  36 Fam LR 422 at 441

   11. The child’s best interests remain the overriding consideration.”

Findings on the facts

1. I have not, to this stage, set out any observations about the demeanour of the witnesses.  Regrettably the father impressed me as aggressive and uncontrolled.  His demeanour when putting questions to Ms Ngo was distinctly off-putting.  While it is clear he completely believes what he says and is in that sense a witness of truth, it is disturbing in that so much of what he says is directly contradicted by independent professional witnesses. 

2. The mother was a careful and responsive witness who responded entirely appropriately to questions from counsel for the Independent Children’s Lawyer.  She dealt with the father’s hectoring behaviour during cross-examination in my view with dignity. 

3. Dr W was an outstanding witness.  Everything he said was redolent of a man fully qualified in his area of expertise and given quite clearly within it.  In my view he dealt with some of the off-putting questions put to him by the father with consummate skill and noteworthy compassion.  He was a witness giving evidence within the area of his professional expertise.  He was not shifted one inch in cross-examination by the father and I accept his evidence in its entirety. 

4. Ms E likewise was a person giving evidence within her area of professional expertise.  Her answers were given with evident sincerity.  She was likewise not moved one inch in cross-examination and I accept her evidence in its entirety. 

5. It is clear that the parties met and married in [omitted] in 2007.  While it is of course possible that the prospect of life in Australia in part explained why a woman would marry so much older a man, the mother’s answer given to Ms E was in my view truthful.  She would never have married him and had children with him, if all she wanted was to migrate to Australia. 

6. It was clear from what the parties had to say during the hearing that as Ms E noted, this case suffers from the difficulties of interpretation, and the possible finessing or loss thereby of various cultural considerations.  I am utterly unable to say whether the father’s complaints about the alleged greed of the mother and her family is or is not true.  It is clear that it is a vivid issue between the parties, as strongly asserted by the father as it is denied by the mother.  I cannot make a finding about it. 

7. What is clear is that the father assaulted the mother upon the occasion of separation if at no other time.  While the father says in effect that the mother’s leaving with her own mother was part of something of a plot to obtain the baby bonus and other benefits, it is far more probable than otherwise that the mother left because of domestic violence as she said she did.  On any view the police were involved and an Intervention Order was made.  The mother in my view was a convincing witness about this aspect of the matter, and I accept her evidence. 

8. It should be noted that the mother’s assertions of violence are consistent with the observations of Dr W to the effect that the father is capable of violence and I note that Ms E in effect adopted Dr W’s report also.  While I note that the care of these children may well have been shared to a greater degree than the mother is now prepared to admit, and it is surprising that the children were in childcare so much at so early an age given that neither parent was working at least full time after December 2009, nonetheless the children have been living with their mother alone for quite some time and as counsel for the Independent Children’s Lawyer says there is nothing to suggest that she is not doing a perfectly good job. 

9. Exhibit A1 shows a whole series of photographs of the father with the children, and they only go to confirm what everybody really effectively agrees, namely that the children have a good relationship with their father.  I note the mother’s evidence that the children have now a diminished interest in seeing their father and that is only conformable with common sense because they have not seen him for some time.  However on any view it is clear that the father adores his children despite his lack of insight and other difficulties. 

The application of the Statutory Pathway

1. The first matter the Court has to consider is the presumption of equal shared parental responsibility which is, as Goode v Goode makes clear, triggered by the making of a parenting order. The presumption must be applied unless there are reasonable grounds to believe that a parent or person who lives with a parent is engaged in abuse of the family child or family (s.61DA(1) and s.61DA(2)).

2. In this case regrettably it is clear that the children have been exposed to family violence on the occasion at the time of separation. 

3. Although that puts the matter shortly it is sufficient of itself to bring the question of equal shared parental responsibility into doubt.  That doubt is only confirmed by the risks associated with the father’s mental health and Dr W’s express finding that the husband was a person who involved a risk of violence. 

4. Further in circumstances such as these the presumption would be rebutted in any event (s.61DA(4)) by the risks that Dr W has referred to and the father’s utter lack of insight as to his difficulties. 

5. The presumption not being applied, the Court is obliged to consider what arrangements will best promote the children’s best interests, which remain the overriding consideration. It is appropriate in my view to assess those bests interests as the Act indicates should be the case by reference to the matters set out in s.60CC of the Act, to which I now turn in terms.

The Primary Considerations

1. It is clear that the children would in a broad sense benefit from having a meaningful relationship with each parent.  They will obviously have one with their mother in any event.  The difficulty with having a meaningful relationship with the father arises out of his psychiatric difficulties and the matters associated with them. 

2. As counsel for the Independent Children’s Lawyer in my view correctly submitted, however, this is a case in which the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse or family violence is to be given particular weight. It is in my experience extremely unusual to have an eminent psychiatrist express an unequivocal opinion that a person is a risk of violence. In circumstances where I am satisfied that violence has occurred it is clearly the case that I should give very considerable weight to this factor. I note that pursuant to s.60CC(2A), I am required to give greater weight to the need to protect the children from risk of violence than the benefit of having a meaningful relationship with each parent.

The Additional Considerations - Section 60CC(3)(a)

1. The children are so young that their views, in my view, would attract no weight.  I accept that at the time of the Family Report it was clear they liked their father and had a good relationship with him.  But in the circumstances that is a relevant but by no means a decisive matter. 

Section 60CC(3)(b)

1. It is clear that the children have a good and loving relationship with their mother.  Although the father has much to say by way of criticism of the mother, even his own proposals suggested that they spend time with her from time to time.  In any event, as I have already said, I accept the submission of the Independent Children’s Lawyer that there is nothing to suggest (at least objectively) that the mother is not doing a perfectly good job.  The children have an excellent relationship with her.  They have had a good relationship with the father when the parties were living together, but the extent of that relationship now is not possible to gauge with precision. 

Section 60CC(3)(c)

1. Here, as I have indicated, I accept the submission of the Independent Children’s Lawyer that the father would totally dominate the mother in respect of any decisions about the children.  He says the mother is worthless as a mother.  I accept, of course, that the father has sought to spend time with the children and communicate with them and, indeed, it is clear he very much wishes to do so. 

Section 60CC(3)(ca)

1. As counsel for the Independent Children’s Lawyer submitted, the father has not contributed much financially, but the mother does concede that he buys things for the children from time to time.  Neither of these people have very much in the way of income and there is not, therefore, much that can be said by way of criticism of either party under this heading. 

Section 60CC(3)(d)

1. Once again, it is not altogether easy to evaluate the effect of separation from the father.  I should note that little has been said in any meaningful sense about the extended family on either side.  This case really turns on the positions of the two parents themselves.  I accept the submission of the Independent Children’s Lawyer that it has been some time since the children have seen the father and thus is more probable than not that it is unlikely that the children will suffer any significant distress in the event that the Orders the Independent Children’s Lawyers seeks are made. 

Section 60CC(3)(e)

1. This is an area of considerable difficulty because of the father’s psychiatric condition and his refusal to acknowledge it.  The father completely dismisses Dr W’s opinion as to his condition and his lack of insight.  Once again, I accept the submissions of the Independent Children’s Lawyer that the application of the father for residence only goes to show how diminished his insight is. 

Section 60CC(3)(f)

1. As already indicated, I have no doubts that the mother is perfectly able to provide for the needs of the children.  The father, however, given his difficulties and his extreme hostility to the mother would, in my view, be unable properly to provide for the children’s emotional needs. 

Section 60CC(3)(g)

1. In the circumstances of this case, this matter does not necessarily take the matter much further.  It is clear that both these parents are of [country omitted] extraction and in the case of the father he has struggled, despite being in the workforce for decades, to integrate himself with mainstream Australian life in any significant way.  He does not speak English with any real capacity even after all these years.  The mother is only beginning to learn English, even now.  What this means by definition is that their affairs will necessarily be more likely to be interwoven with the [omitted] Australian community.  The mother’s decision to send the children to childcare to improve their English, in my view, shows a commendable desire to enable the children to participate in Australian life in a more effective and full way.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. This matter, although clearly relevant, does not require much more to be said, as the matters to which it would give rise have already been dealt with under other subsections.  I would note that the mother has in the main been supportive of the father’s relationship with the children, although scarcely surprisingly in view of the medical evidence and the father’s conduct, she is now more equivocal.  The father’s views about the mother do not require further elaboration. 

Section 60CC(3)(j)

1. This matter has already been dealt with. 

Section 60CC(3)(k)

1. Once again this has already been dealt with.  I note that the mother’s application to extend the Intervention Order appears still to be before the Courts. 

Section 60CC(3)(l)

1. The orders I am going to make are those least likely to lead to the institution of further proceedings. 

Section 60CC(3)(m)

1. Although this matter has probably been over-laboriously dealt with already, it is important to emphasise what this case is really all about.  Despite the significantly different histories given by the parties, the overriding issue that emerges is the father’s mental health and the matters that arise from it.  He is, very unfortunately, paranoid and delusional.  It is a condition, as Dr W makes clear, resistant to treatment and in this case treatment would be likely to take very many years.  The father is not disposed to seek treatment because he does not feel he needs it and this, of course, is part of the lack of insight to which Dr W has referred. 

2. There is on any view a real risk of violence in the event that the children live with the father.  There is a risk of violence if they spend time with the father.  Supervised time for the reasons already noted is not a workable option.

Conclusion

1. I said at the start of this decision that this was a particularly sad case and it clearly is. The father adores his children. It is however quite clearly in the children’s best interests, bearing in mind all the matters I have set out above, appropriate to make the orders sought by the Independent Children’s Lawyer. Those orders speak for themselves. It should be noted that I am making the orders for the father to seek psychiatric assistance. I doubt that he will comply. Nonetheless, it is plainly in the childrens’ best interests (as well, of course, as those of the father) that the father seek and obtain assistance with his psychiatric difficulties. I have considered whether it was appropriate to make such orders, but this is, as the Act makes clear, a matter in which the childrens’ best interests are the overriding concern. If the father was to embark upon a course of psychiatric treatment there is at least some prospect, however remote, that he might improve to a point where he could resuscitate a relationship with the children which is in their best interests and it is to keep that possibility open that I have made those orders.

I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Associate: 

Date:  21 March 2014